From the Chronicle of Higher Education (subscription required) comes word of a botched sexual harassment investigation at the University of Missouri-Kansas City, which has led the school to settle sexual harassment charges for over one million dollars.

Some details about this train wreck:

The University of
Missouri at Kansas City has agreed to pay a total of $1.1-million to two
female employees to settle a lawsuit that accused the university of doing
nothing to stop the two men who ran their laboratory from making sexual
advances, cracking explicit jokes, and groping female co-workers.

The
two women -- Megan Pinkston-Camp, a graduate student, and Linda S.
Garavalia, an associate professor of psychology -- sued
the university [link to copy of the complaint] last year after they both left the lab in 2005, calling
it a "sexually hostile work environment." They asserted that, while they
worked at the lab, they were confused about how to file an official
complaint with the university, and that when they did complain, the
response was perfunctory.

A good model for what not to do when faced with charges of sexual harassment as an employer.

In the past decade a substantial
literature has emerged analyzing the role of work-family conflict in
hampering women's economic, social, and civil equality. Many of the
issues we routinely discuss as work family balance problems have
distinct spatial dimensions. 'Place' is by no means the main factor in
work-family balance difficulties, but amongst work-family policy-makers
it is perhaps the least appreciated. This article examines the role of
urban planning and housing design in frustrating the effective balance
of work and family responsibilities. Nothing in the literature on
work-family balance reform addresses this aspect of the problem. That
literature focuses instead on employer mandates and family law reforms.
This article fills the gap by evaluating the effect of 'place' on
work-family balance and the role law plays in creating our challenging
geography. I argue that effective work-family balance requires
attention to the spatial dimensions of the work-family conflict.

What an interesting premise and one that I, and I'm sure many blog readers, had never thought about when considering these work-family balance issues. This piece is a welcome contribution to this important and developing area of workplace law.

This Article assesses the increasingly
common employer practice of prohibiting employees from speaking
languages other than English in the workplace - a phenomenon that
provides an important window into the debate over how to manage the
cultural consequences of immigration. I argue that the effects of
English-only rules with which we should be most concerned are social,
not individual, in nature. Such rules interfere with profound
associational interests held by workers, both in the workplace and in
social life more generally. While the English-only workplace rule may
seem to advance communication in the workplace, I argue that fostering
cooperation and solidarity among employees actually requires permitting
linguistic fragmentation in some contexts. Promoting genuine, long-term
cooperation in public settings like the workplace depends on what I
call cultural burden sharing, or the development of legal and social
expectations according to which all participants in the public sphere,
and not just the assimilating immigrant, absorb some of the cultural
effects of immigration.

Employees who have sought to challenge
English-only rules have relied, largely unsuccessfully, on Title VII,
which does not provide workers with a viable mechanism for articulating
the salient associative interests compromised by English-only rules.
But even if that limitation could be fixed through amendment or
doctrinal reorientation, the process of cultural burden shifting will
be deeper and more effective if channeled through decentralized and
semi-private decisionmaking structures. Though it may seem
counterintuitive, debates over how to maintain social cohesion during a
period of demographic transformation ultimately should be diffuse and
local, not concentrated and national. Exploring the anti-social
dynamics imposed by English-only workplace rules thus contributes to
the development of a productive framework for coming to terms with how
unprecedented immigration is reshaping our social and political spaces.

This piece provides a new framework for analyzing the issue of English-only rules in the workplace. I am interested to learn more about the "decentralized and
semi-private decisionmaking structures" that Cristina alludes to. In the meantime, check out this very timely piece.

Everybody knows that being a nurse in a hospital is one of the most demanding jobs out there. But a violent job? Yes, according to this story from CNN.com:

Nurses understand that they have a tough job, but getting attacked and
abused is not what former Boston area emergency room nurse Ellen
MacInnis says she signed up for.

"It was very frightening," said the 18-year veteran. An angry and
frustrated patient had grabbed MacInnis' hand, dug her nails in and
made a chilling threat. "If you have children, I'll find them and I'll
kill them."

This was not the only time MacInnis was assaulted on
the job. Last summer, an intoxicated, H.I.V.-infected female patient
tried to hit her and wound up covering her in blood . . . .

Nurses are often on the receiving end of physical assaults, because
they are typically the first and most frequent medical personnel by the
bedside of ill and sometimes angry or frustrated patients.

Emergency rooms seem to be the hot spots for violent assaults,
according to experts interviewed for this article, but general practice
nurses are not immune.

Fifty percent of nurses surveyed by the
Massachusetts Nurses Association (MNA) -- a union of registered nurses
-- and the University of Massachusetts said they had been punched at
least once in a two-year period. Some reported being strangled,
sexually assaulted or stuck with contaminated needles.

What to do? Here is where effective and stringently enforced workplace safety rules can make a difference (I'm sure Kent will be happy to hear I believe this). Rules currently exist under OSHA, it is just unclear whether they are being followed in the breach.

There has been a controversy brewing in Georgia over the sentencing of a seventeen year-old black male teenager to 10 years in prison for engaging in oral sex with a fifteen year-old white female teenager.

The DA in charge of the case for Douglas County is David McDade (pictured left). McDade made headlines again yesterday when he release a videotape showing a sex party of these teens where the incident occurred. McDade claimed he had no choice but to release the tape under Sunshine laws, but the federal U.S. attorney said that distribution of the tape was no less than distribution of child pornography.

In any event, what is the employment law angle? Well, it seems that McDade is no stranger to controversies surrounding sexual conduct. In fact, back in 1999, his own conduct was at issue in Lewis et. al. v. McDade, 54 F.Supp.2d 1332 (1999). Billy Merck from the Above the Law Blog summarizes the allegations:

Defendant McDade would tell a woman employee to walk down the hall so
that he could watch her walk from behind.
...
On occasion, he made comments about Plaintiff Lewis' legs and that her
dress was a “turn-on.” ...
Defendant McDade also shot rubber bands at the breasts and buttocks of
the female employees. ...
Defendant McDade lifted the suit jacket of Plaintiff Gerstenberger and
looked and pointed at her buttocks. ...
On an occasion when a man was being prosecuted who had obtained a
penile implant, Defendant McDade carried the implant around the office
proclaiming he was larger than the implant.

Read the whole post. The allegations get better. As Billy says, "classy dude."

Tony Price, the managing director of WStore UK, an IT
company based in Surrey, demanded that his 80 staff submit to a DNA test
after a piece of chewing gum got stuck to a directors’ suit trousers. When
his global e-mail pointing out the firm's chewing gum ban leaked
to the media, Price cheekily suggested he would force staff to take lie
detector tests to flush out the culprit.

The legislation permits employees to take the leave in any
12-month period in order to take action in response to becoming a domestic
violence victim, such as obtaining an injunction for protection or obtaining
medical care or mental health counseling.

The law applies to employers with 50 or more employees and
to employees who have been at the job three or more months.

Before receiving the leave, the employee must first exhaust all
annual or vacation, personal and sick leave unless the employer waives the
requirement, the law says. The leave may be with or without pay, at the
employer’s discretion.

Except in cases of imminent danger, the employee must
provide the employer with “appropriate” advance notice and sufficient
documentation of domestic violence, according to the law.

Seems like a worthwhile amendment to the federal FMLA as well,
since it fits nicely into the overall FMLA framework

I am often asked whether there are any lawsuits against brokers as fiduciaries for retirement plans. The answer is, yes, there are lawsuits and NASD arbitrations claiming that brokers have become ERISA fiduciaries. They are, in the main, based on allegations that the brokers gave investment advice. The cases are usually filed by the plan sponsor or its fiduciaries (e.g., the responsible officers, the committee or the trustee) to recover investment losses. Some of those cases are won by the plans and others are won by the brokers.

The legal issue is whether the broker made investment recommendations that rose to the level of ERISA-defined “investment advice,” which is different than either the securities law definition or the conversational meaning of those words. Stated slightly differently, ERISA did not make every broker a fiduciary, nor did it turn every investment recommendation into fiduciary advice. Instead, ERISA and the DOL regulations crafted a specific and limited definition of fiduciary investment advice.

In other words, to be fiduciary advice, the broker’s recommendations must contemplate, among other things, investment policies and strategies, portfolio composition, diversification or similar overarching factors. That is, investment recommendations alone are not fiduciary advice.

Laura Cooper (Minnesota) writes to spread the word about an upcoming symposium. Here are the details:

The Minnesota Law Review
has announced plans for an interdisciplinary symposium, sponsored by The Labor
Law Group, The Low Wage Worker: Legal
Rights―Legal Realities, to be held Friday, November 2, 2007,
at the University of Minnesota Law School in Minneapolis. Topics to be addressed include
domestic work, immigration, collective action by low-wage workers, community
organizing, workers’ centers, the history of low wage workers, the
international human rights implications of denying labor protections to
undocumented workers, legislative efforts to regulate big-box retailers, social
class definition, and the economic effects of minimum wage laws. Confirmed
speakers include Peggie Smith, Ellen Dannin, Catherine Fisk, Michael Wishnie,
Scott Cummings, Deborah Malamud, Jennifer Gordon, Nelson Lichtenstein, Craig
Becker, Paul Strauss, David Weissbrodt and William Wascher. Further details of
the symposium, including discounted hotel rates, will be distributed later. In
the meantime, contact Laura Cooper
or Catherine Fisk for further information.

As we reported earlier, the NLRB's General Counsel has
decided to appeal the FLRA's decision to allow a NLRBU bargaining unit that
consists of both General Counsel- and Board-side employees. The NLRBU
Executive Committee has released a response, which states in part:

The GC has mischaracterized the nature of the dispute. Using inappropriate hyperbole, the GC stated
in his June 25, 2007, memorandum to all employees “. . . the FLRA certification
threatens the Section 3(d) independence of the General Counsel.” and “. . . it
raises profound issues regarding the structure and operation of the Agency, and
the independence of the General Counsel’s office.” . . .

As noted by the Authority, “There is nothing in 3(d) that prevents the GC and
Board from performing labor relations functions together.” Moreover, as noted by the Authority, when the
Civil Service Reform Act of 1978 was enacted, Congress specifically addressed
conflicts of interest in federal agencies, including the Board, that administer
laws relating to labor-management relations. The legislative history behind the Statute
shows that the only limitation that Congress placed on the NLRB was that the
employees could not be represented by a union which is subject to the National
Labor Relations Act. . . .

The GC’s position in the June 25, 2007 memorandum also distorts the history between
the Board and the NLRBU. The GC asserts that the Authority’s consolidation of
the units “. . . disrupts over 40 years of productive collective bargaining at
the NLRB and places the independence of the General Counsel at risk.” As found by the Authority, the undisputed facts
reveal a different picture. The Agency
does not dispute that there is a history of coordinated bargaining for over 25
years in which the “policy issues concerning working conditions are jointly
agreed to by the GC and the Board ‘the vast majority of the time,’ . . . and
that the bargaining has resulted in ‘virtually identical contracts’ for the two
headquarters bargaining units.” In
addition, the uncontested facts show that the Agency “does not separate Board
and GC employees in critical respects” involving personnel authority and labor
relations. Those of us who have been in
the trenches dealing with the GC and the Board on day-to-day labor relations
matters know that those two entities speak with one voice on virtually every
topic that is addressed without any compromising of the GC’s prosecutorial prerogatives.

So what really is at stake here? The
only employees in dispute are 32 support staff employees out of a total of 1041
unit employees. This number represents about 3% of the unit. Surely no one can look at the big picture as
found by the Authority, and as largely admitted by the Agency, and conclude
that the GC’s ability to independently prosecute violations of the Act are
jeopardized by the inclusion of this small number of support staff employees
into a single bargaining unit. Yet the
GC has chosen to engage in an unnecessary and pointless academic exercise in
support of a concept that that has no practical effect.

I still don't understand why the General Counsel is putting up such a fight for such a small number of employees. He seems to be inviting bad PR for little to no obvious benefit other than to tweak the union.

France's love affair with ideas has gone too far and it is time for
the country to quit thinking and get to work, Economy Minister
Christine Lagarde said Tuesday as she plugged a tax plan aimed at
boosting the economy.

Prime Minister Francois Fillon's
government has proposed a "shock" program in the land of the 35-hour
work week to encourage the French to work longer hours after several
years of lagging their European peers in economic growth.

Citing French writers Alexis de Tocqueville and Mirabeau, Lagarde said France spends too much time in contemplation . . .

Employers say French labor and tax laws make it hard to create jobs,
and discourage people from working harder. Lagarde said U.S., Japanese
and Spanish employees spend 15 percent more time at work than their
French counterparts.

The proposed measures, which include
scrapping taxes on overtime and most inheritances, making certain
mortgage repayments tax deductible and capping income tax at 50
percent, should be passed by parliament this summer.

Now there is an idea that might work in the U.S.: scrap taxes on overtime work! (Tongue is firmly in cheek). And BTW, why don't our politician quote de Tocqueville more often?

The Supreme Court has made a mess of pay discrimination law. In a prior column, we criticized the Court's recent ruling in Ledbetter v. Goodyear.
In this column, we will argue that Congress should legislatively
overturn that ruling - and should also take the opportunity to amend
Title VII, the centerpiece of federal protection against employment
discrimination, in other ways as well . . . .

The Ledbetter Court dismissed as "policy
arguments" the concerns raised by the dissent about the hardship for
employees who do not learn about pay disparities until it is too late.
The Court ignored the elephant in the room: What kind of information
suffices to place an employee on notice that she has a potential pay
claim, so as to start the 180-day clock ticking? The majority simply
states that the clock starts to run when the "discriminatory pay
decision was made and communicated." . . . .

Specifically, Congress should restore the
paycheck accrual rule--permitting employees to challenge pay
discrimination that extends into the filing period, regardless of when
it first began--that lower courts had applied before Ledbetter.
The point is simple and just: As long as an employees' paycheck is
still tainted by discrimination, she should not be time-barred from
challenging it

The authors also suggest lengthening the Title VII statute of limitations to two years and "lift[ing] the statutory cap on damages in Title VII,
so as to permit plaintiffs full recovery for intentional employment
discrimination and impose sufficient incentives on employers to deter
discrimination in the first place."

This essay -- from a forthcoming
symposium on “teaching from the left” in the NYU Review of Law &
Social Change -- offers an account of the successful union organizing
campaign among custodial and landscaping workers at the University of
Miami during the 2005–06 academic year, focusing in particular on the
role played by faculty during the course of the campaign. It examines a
fractious debate generated by faculty who held classes off campus in
order to support the striking workers and the author's own decision to
put the question of whether to honor the picket line to a vote of his
students. It offers an analysis of the pattern of argument that emerged
-- with opponents of off-campus classes invoking the rhetoric of
contract and supporters invoking the rhetoric of democracy -- and of
what that pattern may reveal about the nature of ideological conflict
in contemporary campus culture.

One of the criticisms of the Supreme Court's decision in Garcetti v. Ceballos (U.S. 2006), which held that public employee have no First Amendment protections when speaking pursuant to their official duties, is that it seems to give public employees the incentive to air their dirty laundry outside of work so they can get the protection of being a citizen.

As a longtime attorney at the U.S.
Department of Justice, I can honestly say that I have never been as
ashamed of the department and government that I serve as I am at this
time.

The public record now plainly demonstrates that both the
DOJ and the government as a whole have been thoroughly politicized in a
manner that is inappropriate, unethical and indeed unlawful. The
unconscionable commutation of I. Lewis "Scooter" Libby's sentence, the
misuse of warrantless investigative powers under the Patriot Act and
the deplorable treatment of U.S. attorneys all point to an unmistakable
pattern of abuse.

In the course of its tenure since the Sept. 11 attacks,
the Bush administration has turned the entire government (and the DOJ
in particular) into a veritable Augean stable on issues such as civil
rights, civil liberties, international law and basic human rights, as
well as criminal prosecution and federal employment and contracting
practices.

Recognizing that his words may not win friends in the Administration, Koppel also writes:

I realize that this constitutionally
protected statement subjects me to a substantial risk of unlawful
reprisal from extremely ruthless people who have repeatedly taken such
action in the past. But I am confident that I am speaking on behalf of
countless thousands of honorable public servants, at Justice and
elsewhere, who take their responsibilities seriously and share these
views. And some things must be said, whatever the risk.

I have to say that I have never seen speech on a matter of public concern which in so self-aware a manner recognizes the current limits of First Amendment protection for public employees.

It will be interesting to see if the DOJ takes action against Koppel. If so, Koppel, as a federal employee and as a result of Bush v. Lucas (U.S. 1983), will have to bring any First Amendment claim that he has to the Merit System Protection Board (MSPB), another politicized agency of the Bush Administration.

T-Mobile USA, Inc's approval of FMLA leave for an employee with
multiple sclerosis was insufficient to prove that the national provider
of wireless communications regarded her as disabled under the Americans
with Disabilities Act, concluded the Tenth Circuit. Given the different
focus of the two statutes, the manager's suggestion that the employee
apply for FMLA leave in response to the employee's request for "a rest
at work due to extreme fatigue," and T-Mobile's approval of that leave,
did not demonstrate an issue of fact as to whether she was "regarded
as" disabled under the ADA.

I think this decision is right on the mark. The standard under the FMLA is whether an individual has a "serious health condition," which is defined as requiring either inpatient care, involves a chronic serious health condition, or requires more than a three day absence and two doctor visits or one doctor visit with a medicine being prescribed. The ADA, on the other hand, requires an individual to have a mental or physical impairment that substantially limits the person in one or more major life activities.

Clearly, then, one can have a serious health condition under the FMLA without being deemed disabled for purposes of the ADA. That being said, there is some overlap between the two statues, and the granting of FMLA leave may prove probative is appropriate circumstances to determine whether the employer regarded the employees has having a substantially-limiting impairment.